Kaleb Avalos-Lanteros was born with what amounted to a fractured skull. The injury caused brain damage and was first recognized while Kaleb was in the neonatal intensive care unit at Mount Sinai Medical Center in Chicago.

The cause of Kaleb’s skull fracture was not acknowledged by anyone but was alleged to have happened when Kaleb was being cared for in the NICU. No one took responsibility, so Kaleb’s parents relied on the claim of res ipsa loquitur in suing lots of defendants, which included the hospital, EPC Healthcare Staffing and another group of companies affiliated with Sodexo Inc.

The lawsuit and its complaint included claims for what the lawyers called “specific negligence” in addition to the claim of res ipsa loquitur, which literally means, in Latin, the thing speaks for itself. In other words, the law allows this theory to be applied for a claim in which the event alleged could not have happened in the absence of negligence. That presumption is rebuttable and can be defeated, but would be a question of fact to be decided by a jury as the finder of facts.

The defendants moved for summary judgment wherein the district court judge dismissed the specific-negligence claim but denied the motion on the res ipsa loquitur allegations.

In the court’s opinion, it was stated that for negligence claims based on res ipsa loquitur, a plaintiff “must plead and prove that he or she was injured (1) in an occurrence that ordinarily does not happen in the absence of negligence, (2) not by an agency or instrumentality within the defendant’s exclusive control.” Heastie v. Roberts, 226 Ill. 2d 515 (2007).

As far as the second element, “exclusive control,” the court said that it is “interchangeable” with the term “management and control”: “The requisite control is not a rigid standard, but a flexible one in which the key question is whether the probable cause of the plaintiff’s injury was one which the defendant was under a duty to the plaintiff to anticipate or guard against.” Id.

The court also stated that the question of res ipsa doctrine application relies on a question of law decided by the trial court. As to the motion for summary judgment on the res ipsa claims, the plaintiff “only has to present enough evidence to raise an issue of fact as to whether defendant had control over the instrumentality which caused plaintiff’s injuries.” Gatlin v. Ruder, 137 Ill. 2d 284 (1990). The plaintiff need not “eliminate all other possible causes of his injuries”; rather, “the finder of fact must determine who proximately caused” them. Id at 298.

The court stated that “if the defendant controverts the plaintiff’s evidence that the injury ordinarily does not happen in the absence of negligence, that dispute does not provide grounds for taking the issue away from the finder of fact.” Adams v. Family Planning Associates Medical Group, Inc., 315 Ill. App.3d 533 (2000).

One of the defendants, EPC argued that the res ipsa negligence claim was not sustainable because the plaintiffs could not show “that the multiple defendants named exerted exclusive control over Kaleb, the instrumentality.”

The trial judge stated in the opinion that the plaintiff does not have to demonstrate that fact convincingly; they do not “have to eliminate all other possible causes of his (Kaleb’s) injuries.” Gatlin, 137 Ill. 2d at 298.

It is sufficient for plaintiffs to offer evidence from which one could reasonably infer that the various parties who tended to or may have tended to Kaleb during his time in the NICU could have had control over him, even if the person or thing that caused the skull fracture is unknown, because that is precisely the point, that the person or thing that caused the fracture is unknown.

The defendant Sodexo cited an Illinois Appellate Court case that stated that “it must be shown that the injury can be traced to a specific instrumentality or cause for which the defendant is responsible or that the defendant was responsible for all reasonable causes to which the accident could be attributed.” Napoli v. Hinsdale Hospital, 213 Ill. App. 3d 382 (1991).

Interestingly enough, the Napoli opinion did not cite the Gatlin opinion rendered by the Illinois Supreme Court, which held that plaintiffs need “only to present enough evidence to raise an issue of fact as to whether the defendant had control over the instrumentality which caused” harm to the plaintiff. 137 Ill. 2d at 297.

Accordingly, this court dismissed the Napoli decision as one that had no influence on it. Res ipsa is a theory of negligence for a plaintiff who necessarily cannot show with specificity which defendant might have caused the injury or exactly how it happened. In this case, the court pointed out that the instrumentality in question is Kaleb. Plaintiffs alleged that one or more of the agents charged with Kaleb’s care in the NICU negligently caused his skull fracture and his resulting brain damage. As to Sodexo, it raised a question of fact concerning whether its employee could have been responsible for injuring Kaleb through negligence. That is an issue of fact to be decided by a fact finder.

Accordingly, the court’s well-reasoned opinion dismissed the specific-negligence claims, but denied the motion to grant summary judgment on the res ipsa allegations.

Avalos-Lanteros v. United States, No. 11 C 2204 (U.S. District Court for the Northern District of Illinois, June 20, 2014).

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